Non-compete clause in UK, where do I stand?

Question

I currently work for a financial services company in London doing strategy research in a particular asset class. My current contract has - on top of a 3 month notice period - a 6 month non-compete clause.

The relevant wording is:

Accordingly, you agree that you shall not either on your own account or on behalf of any other person, firm or company directly or indirectly at any time: during the First Restricted Period be employed or engaged by or concerned or interested or participate in any Competitive Activity, provided always that this shall not restrain you from being employed or engaged by or concerned or interested or participating in any business in so far as your duties shall relate solely to 1. geographical areas where such business is not in competition with the Business; or 2. services or activities with which you were not concerned to a material extent at any time during the Protected Period

I have an offer from another company to work on trading strategy research in a completely different asset class. An asset class that I have not worked on at all during my tenure with my current employer. It is my view then that my current employer need not waive the non-compete clause as I will not be in breach of it due to point 2.

Additionally, in the offer letter from the new company they have said

We are aware that your current employer imposes certain restrictions on your activities after you leave, and we understand that your employer has waived such restrictions in other cases. It would be best if you could obtain such a waiver from your current employer, but failing that, we believe our proposed employment of you as a researcher focused on does not constitute a breach of the current restrictions.

To matters a little less clear my current employer has a policy of paying the base salary during the non-compete period if it is not waived.

I have not told my current employer the name of my new company. What I have done is resign and state said that I will be working on things I have not been working at my current role.

It would appear that my current employer do not wish to waive the non-compete. Am I safe to start work with the new company on the basis that I am not in breach due to point 2? Furthermore, what happens if I receive two salaries for 6 months?

Answer 1

Am I safe to start work with the new company on the basis that I am not in breach due to point 2?

This depends on whether you can persuasively argue that your work product is highly dependent on the particular asset class(es) at issue.

Even if the former employer alleges that your research there is applicable to asset classes in common with your new job, the specificity of your functions or work product in the former employment may defeat the employer's allegation of wrongful competition. Similarly if the former employer does not deal with the asset class(es) that your new job involves.

what happens if I receive two salaries for 6 months?

Receiving income from multiple sources is lawful in general. Here, the post-employment salary from your former employer seems premised on your compliance with --and employer's non-waiver of-- the non-compete rather than on you being unemployed during that period.

Furthermore, you yourself made the former employer aware that you "will be working on [other/unrelated] things", and it appears that he did not take issue therewith. The employer's lack of objection indicates his agreement or consent thereto, this being based on his knowledge that those things are not in violation of point 2 of the clause.